BURCHARDT & BURCHARDT

FAMILY COURT OF AUSTRALIA

BURCHARDT & BURCHARDT

[2015] FamCA 297

FAMILY LAW – CHILDREN – With whom a child lives – Relocation
FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 ss 60CA, 60CC, 61DA(1), 65AA,

APPLICANT:

Mr Burchardt

RESPONDENT:

Ms Burchardt

INDEPENDENT CHILDREN’S LAWYER:

Mr D Ridge

FILE NUMBER:

CAC

738

2012

DATE DELIVERED:

23 April 2015

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

10-12 December 2013, 23-26 February 2015 & 17 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Self-represented
SOLICITOR FOR THE RESPONDENT:	Self-represented
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Barker & Barker

Orders

Parental responsibility

The mother have sole parental responsibility for B (born … 2004), C (born … 2005), D (born … 2007) and E (born … 2008) (‘the children’).
Notwithstanding Order 1 above, the mother will:
(a)Authorise and direct any school or educational facility which the children attend to provide upon request from the father and at his expense copies of all reports, notices and information about the children which the school may hold. The father may provide a copy of this Order to any such school or educational institution.
(b)Advise the father about any medical practitioner or similar professional that the children consult, and will authorise such practitioner or professional to provide information to the father upon his request and at his expense.

Health and medical issues

Each parent will:
(a)Notify the other of any medical condition or injury that requires attendance/presentation at hospital, immediately in the event of an emergency or life-threatening condition, or within 24 hours for non life-threatening conditions;
(b)Use his or her best endeavours to co-operate about the attendance of each of the parents on any child in hospital.
Each parent will notify the other of any other medical or health-related issues within 48 hours of the issue coming to that parent’s attention.
The parties do such things as are necessary to ensure both parents have access to the health insurance of the children and are able to claim such sums as are recoverable
Each parent will pay all out of pocket medical expenses for the children while the children are in his or her care up to the sum of $500. It is noted that the parents are in agreement that they will share medical costs for the children which exceed $500.

The time the children spend with each parent

The children live primarily with the mother.
The mother be permitted to relocate the residence of the children to Queensland, Australia from 1 January 2016.
From the date of these orders until 1 January 2016 the children will spend time with their father as follows:
(a) B spend time with her father as she chooses.
(b) C, D and E spend time with their father
(i)From after school each alternate Friday until before school the following Monday, unless the Monday is a public holiday in which case until before school on the Tuesday;
(ii)From after school to 7:00pm on the Monday before the next weekend on which the father will have the children;
(iii)For the end of second and third term school holidays periods from the Sunday after school finishes at 3:00pm to 3:00pm on the Saturday before school commences;
(iv)For the Summer/Christmas school holiday period from after school on the final day of school until 3:00pm on 31 December 2015.
(v)From 5:00pm on the Saturday immediately prior to Fathers’ Day until before school on the following Monday if the children are not already spending time with him;
(vi)And at any other times in accordance with the children’s wishes and as agreed.
(vii)On Mothers’ Day if the children would otherwise be with their father the mother will collect the children at 9:00am and return them to him at 5:00pm.
(viii)Notwithstanding these orders, the children will spend time on their birthdays with the parent with whom they are not living as follows:
1.If it is a school day, from after school until 5:30pm;
2.If it is not a school day, from 11:00am until 5:30pm.
3.The parent with whom the children are not living will pick up and return the children at these times.
(a) Any changeovers during this period will occur at the children’s school(s) (unless the parents otherwise agree) if the changeover occurs during term time. Otherwise the parent to whom the children are travelling will collect the children from the residence of the other parent.
(b)Notwithstanding Order 10(a), for the purposes of the Monday night contact the father will collect the children from the school and the mother will collect the children from the father at the expiry of the time (unless otherwise agreed).
From 1 January 2016 the children will spend time with the father as follows:
(a)For the whole of the school holiday period following first term and third term;
(b)For half of the Summer/Christmas school holiday period following fourth term as agreed between the parties or, failing agreement, for the first half of the Summer/Christmas school holiday period in years ending in an odd number, and the second half of the Summer/Christmas school holiday period in years ending with an even number or zero.
(i)In the event the parents are in the same vicinity on Christmas Day, the children will spend time with the other parent from 3:00pm Christmas Day (25 December) to 3:00pm Boxing Day (26 December). The parent wanting to spend time with the children will provide the other parent with 10 days written notice.
(c)For two weekends per school term from after school on Friday until 5:00pm the following Sunday, as nominated by the father in the Brisbane area. The father is to provide the mother with 14 days notice in writing, and such time is to be at the father’s expense. The father shall ensure the children attend any regular extra-curricular activities they are enrolled in within that time. No such weekend will be on the mother’s birthday or Mothers’ Day.
(d)If the Easter weekend falls within the first term school holidays, as provided above the children will spend this period with their father. If it does not they will not (unless that parties otherwise agree).
(e) At any other time as agreed.
For each period in which the children are spending time with the father, the father is responsible for organising and bearing the costs associated with travel to collect the children at the beginning of the period, and the mother is responsible for organising and bearing the costs associated with collecting the children at the end of the period. Full copies of all flight bookings are to be provided to the other parent no later than 28 days prior to the travel occurring unless otherwise agreed.
For the purposes of Order 11 above it is noted that the children are not to travel on a plane without an accompanying adult until E has reached the age of 10 years unless otherwise agreed.
For the purposes of Order 11 above, changeover is to take place at Canberra Airport at the commencement of the father’s time with the children, and at Brisbane Domestic Airport at the commencement of the mother’s time with the children unless otherwise agreed.
For the purposes of Order 11 above it is noted that the school holiday period means the Queensland school holiday period.
A parent who wants the children to spend a significant event (weddings, funerals, other significant family events) with him or her will:
(a) Give not less than 28 days notice to the other parent;
(b) Will pay for all travel costs associated with attending the event.
Typically the time for attendance would be for 2 nights including the night of the event.
The father hand over to the mother forthwith the children’s passports and, subject to these orders, the mother will retain them in safekeeping hereafter.
Both parents will from time to time as required ensure the children’s passports remain current and will share any costs associated with this.
It is noted that each of the parents accepts that a child may travel overseas with the other parent. Each parent, if proposing such travel will provide to the other parent 28 days prior to the planned travel a full itinerary including, but not limited to, copies of flight bookings, proof of insurance, accommodation, and contact details. The mother will provide the children’s passports for this travel as needed.

Communication

(a) Each parent will enable and facilitate any of the children to communicate with the other parent via Skype, Facetime, telephone or other electronic means at any reasonable time when such child is in that parent’s care.
(b)If the children are not with a parent, that parent may communicate with a child or all children by Skype, Facetime, telephone or other electronic means twice per week. That parent will do everything reasonably possible to ensure that the time of the call does not conflict with the children’s meal times, bed times, or extra-curricular activities.
The parents will inform the other parent of any change to their mobile phone number, email address and postal address within 48 hours of such change.

Other matters

Forthwith after the date of these Orders the father and B will attend upon a professional nominated by the Independent Children’s Lawyer, for the purposes of counselling to assist with the reinstatement of the relationship between them. The father will pay any costs associated with such appointments.
That neither parent will say unkind or unpleasant things about the other parent, or the other parent’s family and friends, in the presence or hearing of the children or knowingly permit any other person to do so.
Each of the parents is hereby restrained from using a surname other than “Burchardt” for the children without the consent of the other parent.
Nothing in these Orders prevents the parents from agreeing to alternative arrangements.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
This matter is removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burchardt & Burchardt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 738 of 2012

Mr Burchardt

Applicant

And

Ms Burchardt

Respondent

REASONS FOR JUDGMENT

These were proceedings between two parents about where the children might live and with whom. The proceedings took place in two tranches. The original proceedings also included the second respondent who is the father of A. The mother and the second respondent had been in a relationship before she met and subsequently married the first respondent.
Initially the mother sought leave to relocate to the Country F (“the Country F”) to join a person she proposed to marry who was a Country F citizen.
Subsequently, and before trial, the application was changed. The Country A relationship had been terminated and the mother now proposed that she would live in Queensland with the children partly because it was a return to a familiar environment with extended family and significantly because of her need to provide care for her parents who are suffering from some serious illnesses.
The first respondent is a public service who, during the course of his employment, moved with the family to a number of different places in Australia. At the time of separation the parties were living in Canberra.
The father’s proposal was that the mother should be restrained from moving to Queensland with the children and that the parties should share the care of the children.
The second respondent lives in Queensland and while not actively engaged in the proceedings, broadly supported the move to Queensland.

Procedural history

The proceedings began when the mother filed an Application on 15 August 2012 in the Federal Magistrates Court (as it then was). The father filed his Response on 18 September 2012. The matter was transferred from the Federal Magistrates Court on 19 September 2012.
The matter was scheduled for hearing and was heard on 10, 11 and 12 December 2013. A Family Report was prepared for the purposes of the hearing and it became Exhibit J1.
As was pointed out during the course of the hearing, the mother’s case suffered from the fact that she had provided virtually no information or details about her proposal to move to Queensland. Judgment was reserved.
Subsequently, on 2 December 2014 the father filed an Application that the mother be dealt with for contravention of the interim orders that had been originally made. These were orders made by consent by Registrar Parker of this Court. It is fair to say that the parties, or their legal advisers, had not drafted the orders as happily as they might have.
It was pointed out to the father that if he brought these proceedings and I, as the trial judge, became aware of the matters set out in his affidavit in support of his Application, it was inevitable that the evidence in relation to the primary matter (upon which judgment was reserved) be reopened. The father accepted that consequence including the fact that this would enable the mother to rectify the deficits in her earlier evidence about her arrangements for Queensland.
The matters (that is the Application that the mother be dealt with for contravention of the orders of the Court and the taking of the further evidence on reopening of the primary matter) were listed for hearing commencing on 23 February 2015, until 25 February 2015.
In the meantime the second respondent had discontinued his involvement in the proceedings and each of the parties was self-represented. I was nevertheless assisted by the Independent Children’s Lawyer, Mr Ridge.
The contravention proceedings took place on 23 February 2015 and each of the seven counts asserted against the mother was dismissed.
In the course of the recommenced proceedings the father indicated that his position now was that the children should live primarily with him and spend time with the mother. He thought that the mother might nevertheless move to Queensland to look after her ill parents and various proposals were made for the children to spend holiday time with the mother.
For her part, the mother reaffirmed her wish to move with all of the children to Queensland and that the children should spend time with their father. Essentially this time would occur during school holidays, as was the father’s suggestion should the mother relocate and the children live primarily with the father.
A second Family Report (J2) dated 12 February 2015 was prepared for the purposes of this hearing.
The initial recommendation in J1 was that the children and their mother should remain in Canberra and that the children should continue to spend time with their father but to live primarily with the mother. In the first report Ms G, the Family Consultant, had otherwise suggested that the parents should have equal shared parental responsibility. The Family Consultant under cross-examination acknowledged the difficulties in the relationship between the parents, and agreed that it would probably be in the best interests of the children that the mother have sole parental responsibility.
At the recommencement of the proceedings each of the parties reasserted his or her position that is, the father wished the children to live primarily with him irrespective of where the mother lived and the mother wished that the children live primarily with her and that she have sole parental responsibility and that she and the children live in Queensland.

Parental responsibility

Under s 61DA(1) of the Family Law Act 1975 (“the Act”) there is a presumption that
it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
This presumption may be rebutted by a number of circumstances outlined in the section. However, the broad proposition that the presumption may be rebutted if it is in the best interests of the children to do so, is in my opinion, applicable in this matter. I so advised the parties during the course of the hearing.
The acrimony between the parties, their unwillingness to communicate effectively one with the other, the disrespect shown by the first respondent to the mother in particular and the poisonous nature of the current relationship between the parents which is not only recorded in their affidavits but patent in their demeanour in court towards each other mean that there is no reasonable prospect, even if professional assistance were engaged, that the parents of the four younger children would be able to cooperate and collaborate on making long-term decisions about the children’s best interests and welfare.
This is illustrated (although not perhaps in relation to major matters relating to the children) in the exchange during the course of cross-examination of the mother about extra-curricular activities for the children. During the course of communication between the parents previously about the sorts of activities the children might engage in, the mother formed the opinion the father would not agree to any of the suggested activities. During a course of cross-examination on 24 February 2015 the father outlined a very long list (indeed an impressive list) of activities the children might be engaged in. However, the only activities that he had in fact supported were skipping and Guides. He conceded that if an extra-curricular activity involved his expenditure of money he was unable to support it.
I comment that the father’s listing of all the various activities was almost certainly designed to impress the Court and was duplicitous because of the qualification he placed upon it.
However, it is not necessary or even appropriate for the purposes of determining parental responsibility to determine who is to blame for the current difficult relationship between them. It is enough that I can find, and do find, that the relationship is such that it would not promote the children’s best interests for the parents to have to cooperate or collaborate about matters relating to the children.
For the reasons which I set out hereafter, in my opinion the children should live primarily with their mother and in such circumstances in my opinion (in line with the opinion of the Family Consultant) this means that the mother should be the person who has sole parental responsibility.
This does not mean that the mother can simply do what she likes and that the father should have no involvement with the children. Curiously, in the strangely strained and antagonistic relationship between the parents each acknowledges (and in my opinion genuinely) the need for the other parent to have an input into the children’s lives.

In the orders that were drafted by consent, on an interim basis, there were provisions for the notification to either parent relating to medical incidents or treatment.
This is particularly important in this matter as some of the children suffer from various disorders (including H and C who are in the Autism spectrum and D who has a speech defect). The wording chosen by the parents in the orders made by consent contributed to the Applications for Contravention by the husband.
In this matter I shall make orders of a similar kind but hopefully providing a more precise direction. It is appropriate that both parents are aware of any serious illness or any medical treatment that is to be undertaken for the children. It is appropriate that information should be conveyed from one to the other as soon as it reasonably might be. Reasonable parents will make adjustments and accept that exigencies of situations may preclude instant communication. Reasonable parents would nevertheless seek to provide prompt, if not instant, communication about difficulties. Unfortunately, these parents are not reasonable.
In making orders about the children I am directed by ss 60CA and 65AA of the Act to make orders taking the best interests of the children as my paramount consideration.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.[1]
[1] Section 60CA
In determining what is in the best interests of the children s 60CC of the Act provides that there should be two primary considerations and a number of additional considerations taken into account by the judge determining the matter.
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) provides that
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.

The benefit of a relationship with each parent

I indicated to the parties during the course of the reopened hearing that the nature of the relationship with a parent must necessarily be called into question in circumstances where the other parent seeks to relocate. As the mother conceded to me, if she were to move to Queensland and the father did not move to Queensland the nature of the children’s relationship with their father must necessarily be affected and in general terms diminished.
As in all cases involving one parent seeking to relocate, however, this is but one of the considerations to be taken into account and weighed with the other considerations. No provision of the Act allows a parent to move whenever he or she wants to move irrespective of the consequences for the children but equally no provision of the Act provides that either parent may, unless it be in the children’s best interests, prevent the other parent from resuming a separate life which might include in some cases moving – for whatever reason.
It should be added in this matter that the father, although it may be possible for him to seek a posting in Brisbane, has steadfastly resisted any suggestion that he might so move.
Indeed, he somewhat surprisingly asserted during the course of his cross-examination (in answer to a question from me) that he felt there would be no difference in the sort of relationship he would have with the children if he were living in Brisbane and possibly one hour away from them, from the relationship he might have if he were to remain in Canberra.
The father’s evidence is that his career path would be likely, if not probably, to keep him in Canberra for some time but he conceded that there was no guarantee that would be so.
What he did guarantee he said, however, was that if the children were living with him and he were to be posted away from Canberra that he would resign and obtain employment in Canberra.
Naturally enough this plan was not fleshed out in any way. There was no suggestion as to what employment he might obtain. If he did resign he would be obliged to surrender his accommodation so the children would be involved in the moving of house at least. He did say that he would try to keep the children at the same school but it seems inevitable that this may be dependent upon where he is in fact living.
I have already indicated that each of the parents acknowledges that the children derive benefit from the relationship with the other parent. In this regard the father is probably more supportive of the mother’s maternal qualities than she is of his paternal qualities. Nevertheless, the father’s disdain for the mother as evidenced in a number of e-mails put into evidence and in his responses in the witness box and his demeanour in the witness box (which was corroborative but may have been the result of nervousness rather than intentional affect) may modify the good things the father had to say about the mother.
In broad terms, I accept that the mother has done a good, if not excellent, job in her care of the children. The disabilities of some of them have added significantly to her burden and her empathy for the children, her concern about their welfare and her resilience are obvious. In many cases her affidavits understate her position and her evidence orally was much more impressive in many ways.
I do not doubt that the father, particularly with the support of his extended family in Canberra (a benefit the children would lose at least in part if they were to move to Queensland), can look after the children. His plans for how he would care for them, even during holidays, were somewhat vague and involved drawing upon his family support. There is nothing wrong with this. His family is supportive and I accept that is the case. I also accept that they love the children and that the children like being with them (in general terms).
However, as the father points out he is a career public servant and while he seemed confident that his hours of work can be flexible enough to accommodate the requirements of the children I formed the impression that this was optimistic rather than realistic to the extent that the disabilities from which C suffers in particular are likely to place demands on the primary parent which are not easily met in circumstances of full-time and committed career employment.
All that having been said, there is no doubt that the children will derive benefit from a relationship with each of their parents. I believe they are likely to derive more advantage when these proceedings have been concluded and one cause of animosity between the parents has been removed.

Safety

The mother has expressed concerns about the children’s safety. These relate, in part, to the fact that the father accepts that discipline of the children includes smacking - as opposed to hitting. This was a distinction he reported to the Family Consultant and a distinction which the Family Consultant had reservations about. I share the reservations. The activities of the father in this regard appear to have alienated B from him and the rebuilding of that relationship may require patience and time.
Notwithstanding this significant reservation and notwithstanding the fact that in my opinion the father, at least in part, is inclined to put his considerations ahead of the children’s, I believe there is no unacceptable risk for the children in being with their father. I am satisfied that he can provide for their physical care at least with the assistance of his family. I am satisfied that he can look after their education and welfare and indeed will contribute significantly to it. I have some reservations about his ability to satisfactorily support the children’s emotional needs but I suspect that this situation will improve once these proceedings have been finished.
The mother suggests that if she lives in Queensland it may reduce the tension between the parties and enhance the potential relationship of the children with their father. I find this proposition difficult to accept. I do accept that the interface between the parents brought about by more frequent contacts between the children and their father may provide opportunities for difficulties. I am not entirely satisfied however that simply separating the parties by two hours by plane or some hundreds of kilometres and restricting the times that the children spend with their father to essentially the school holidays, will reduce the opportunities for confusion and conflict. Equally, I am not satisfied of the reverse; that is, if the children remain in Canberra, that the situation would necessarily improve.

Additional considerations

There are a number of matters which the Act prescribes that I must take into account in determining what is in the best interests of the children. In addition to the primary considerations to which I have already referred there are a number of additional considerations.
Because of the variation in the ages of the children it is difficult to express generally a uniform, concluded view about what “views” the children may have expressed and their maturity and understanding which in turn would be relevant to the weight to be given to their views.
Sensibly H has been in effect placed outside the equation. Her potential separation from the mother and the other children if H were to carry out her desire to move to Queensland and the mother were not to move to Queensland with the children is a factor I shall discuss a little later on.
B has expressed a strong view about the fact that she does not want to spend time with her father as it was in the past but has indicated that she would like to spend some holiday time with him. This view would be consistent with her living in Queensland. Her maturity moreover has been demonstrated by the fact that she appeared to be anxious in her reported comments to the Family Consultant not to influence the younger children in any way. The Family Consultant affirmed that B was a surprisingly mature person for her age. I must necessarily give substantial weight to her views.
The younger children are not really of an age and maturity where their wishes might be determinative of the issue of where they and their mother might live or the time that they spend with their father. It is somewhat disturbing that each of the two elder children has effectively terminated the time that she spends with the father as soon as her views have been listened to.
There seems however, to be common ground that the younger children enjoy their time with their father and whatever the future may bring it is important that they should continue to do that. It is also notable that the two elder girls support the fact that the younger children might spend time with their father and that they would enjoy it.
I have already indicated to some extent how I observe the relationship between the children and their father.
By way of summary however, the following comments are appropriate.
The relationship at present between H and the father is fraught and fractured.
The relationship between the father and B is also broken at present although there is some hope that it might be capable of repair at some point in the future.
The father’s relationship with the younger children has been supported by B as I mentioned above and appears to be a loving and beneficial one.
The father’s disciplinary style has in the past been problematic and his somewhat disconcerting inability to differentiate between hitting and smacking (at least in any clear way) is a troubling thing.
This situation is compounded in part by the problems H and C have and the speech impairment of D. Sadly for the sake of the children, the parents do not seem to be united about the style of parenting (and discipline) which would be most beneficial to those younger children.
More generally, I found during the course of evidence that while each of the parents demonstrated an almost unshakable belief in the correctness of his or her position about the children and what might be best for them in the future, and while neither demonstrated the sort of flexibility that I would have expected might have resulted from a number of years of shared parenting, in my opinion the father’s attitude was less empathetic towards the children than the mother’s. I come to that conclusion not exclusively on the reports of the children, particularly B, and to some extent H, but from my observations of the father both in Court and in the witness box. I hasten to add, that it is not that the father does not love the children. It is quite clear that he does. The reservation I have from my observations of the father and his evidence is that he may not on occasions be able to properly understand and absorb what in fact the children need.
In fairness I should point out that in my opinion as well, the mother does tend on my observation at least, to see what is best for the children through the prism of her own interests. Nevertheless, I reject the husband’s comments in his final submissions that what the mother does is all about the mother.
On balance I think that the mother is more appropriately child-focussed than the father.
While there were differences of opinion between the parents about the willingness of each of them to provide opportunities to the other to participate in matters relating to the children I can have no doubt that each of them has to the best of his or her ability sought to take such opportunities as they arose.
I mention but briefly that during the course of his career in the public service the father has been away from the family on a number of occasions and this has limited, in the past at least, some of his opportunities to spend time with the children.
The mother in this matter complains that the father has failed to support the children financially in their extra-curricular activities. I have already made reference to this above and do not propose to repeat the comments I made previously.
It is inevitable in a case in which one party seeks to move his or her home away from the other that there will be an effect on the children as a result of that move and the separation from the parent left behind and from other members of the family.
That is one of the factors in this matter which I shall address in more detail shortly.
I do not propose to make any further comments about the capacity of the parents to provide for the needs of the children including their emotional and intellectual needs. I have already made comments about this previously and while I think each of the parents is capable of providing support for the children in these areas, the fact that the children have spent the preponderance of their time with their mother in the past and that she has done, even by the father’s acknowledgment, a good job (except in what he perceives as her lack of support for the children’s relationship with him) leads me to conclude that the mother has a greater capacity than the father. This however is a matter of degree rather than a black and white contrast. There is no doubt that the father can, has and will provide for the needs of the children emotionally and intellectually.
There are no particular cultural elements to the children’s background (or the parents’) which require particular comment. I have also commented about the attitude of each of the parents towards the children and there is nothing further that I can usefully add in commentary at this point.
There are family violence issues associated with the disciplining of the children in particular. I believe that it is probable that this will not be an issue in the future although it does appear that there are occasions in which the father finds it difficult to exercise some degree of restraint. It is not a matter which would cause me of itself to make a determination in favour of one parent or the other.
One of the factors that the Act requires me to take into account is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. When the children are of different ages it is almost impossible to provide a set of orders which will deal with all circumstances for all children into the future until they become adults. There is nothing in the orders that I propose to make in this matter which would particularly bring about further proceedings between the parties although it is to be noted that the father has taken in the re-opened proceedings in this matter action against the mother for her supposed contravention of existing orders. That was his right and remains the right of each of the parties if the other fails to comply with orders. Nevertheless, it would be beneficial for the children if in fact the litigation and the animosity between their parents were to end.

In summary

Taking account of the matters set out above and taking into account the matters presented by the Family Consultant in her family reports and during the course of her cross-examination, it would be in the children’s best interests for them to live principally with their mother, to spend time with their father and for their mother to have sole parental responsibility for them but ensuring that the father is both advised of, and so far as it is possible in the nature of their relationship consulted about matters relating to the children’s long term care, welfare and development.
Although the Family Consultant’s report recommended a continuation of the existing arrangements about the time the children spend with their father (5/9), she agreed during cross-examination that shared parenting was not indicated by the attitude that the parents expressed towards each other. She considered that perhaps an alternate weekend arrangement with the father for the younger children together with possibly some time in the other week might be appropriate.

Relocation

The mother’s proposal in brief is that she should move to Queensland to occupy a premises either owned or controlled by her parents to live in the I Town area and for the children to attend school there. She had investigated the schools and believes that there was an appropriate place available for the children which would enable their special conditions, in the case of the younger children, to be taken into account and supported. She proposed that the children should spend time during the holidays with their father but not otherwise.
The father’s proposal was that the children should stay with their mother in Canberra and that they should live principally with him and spend time with their mother. As the hearing unfolded it became clear that this would not be a likely result and the father appeared to acknowledge that the children might spend time with him in Canberra rather than live with him. He submitted with some force and indeed was supported by the Family Consultant the fact that the relationship with him could be continued more satisfactorily if the children were closer and therefore able to see him more frequently, such as (at least) every second weekend and possibly at some other times.
He proposed that the mother should continue to occupy rented premises and that he would occupy, while he remained in the public service, work premises (the former family home) but that he would endeavour to find accommodation in about the same area if in fact his employment were to be terminated. As I said previously, the father had indicated that he would resign from the public service if he were obliged to leave Canberra.
The Family Consultant was particularly concerned that a further move for the children would be a destabilising event which could impact upon their best interests. She pointed to the history of fairly regular moves with their father and mother as a result of the father’s employment in the public service. She also emphasised that if the children were living in Queensland, this would represent a significant separation for them from their father. Even if the travel time by air was not very long (say by comparison with a car trip across Sydney) she felt that air travel was a significant thing for children and would be regarded by them as a factor in their significant separation from their father.
The factors in favour of the mother’s proposal include the following:
a)She wants to move to Queensland and has a valid reason for doing so. (She is needed to assist her mother and she wants to do so.) Her desire to exercise freedom of movement is not obviously motivated by a desire to prevent the children from spending time with their father although she recognises that the move would have that necessary consequence.
b)She sees that the move to Queensland would enable her to return to her quite extensive family there and that that would provide her with some assistance and would in fact, she argues, provide stability for the children and that this would be enhanced by her better psychological wellbeing.
c)She pointed to the fact that the accommodation in Queensland would be secure and for all practical purposes permanent and affordable. This she contrasted with the lack of permanence in her accommodation in Canberra/Queanbeyan and for that matter the father’s potential volatility of accommodation if his employment in the public service were to terminate.
d)If she were living in Queensland H, who had apparently indicated that she wanted to move to Queensland irrespective of whether or not the mother went, would be nearer to her father and would remain effectively a part of the family and that this would be a good thing in itself.
e)The Independent Children’s Lawyer favours the mother’s proposal.
If I were to make orders of the sort indicated above which meant that the children live primarily with their mother and she had sole parental responsibility the time that the children spent with their father would be reduced. The mother argued that for the children to spend time with their father would be enough to enable their relationship with him to be nourished and continued.
On the other hand, the father’s proposal that the mother remain in the Canberra/Queanbeyan area with the children would unquestionably facilitate more convenient arrangements for the children to spend time with him at more frequent intervals.
This would also be desirable because the father only has about four weeks leave a year and if the children were to spend, for example, all of their school holidays with him, he would not be available personally to care for them for all of those holidays. He saw his family as playing a role in this area and I accept that they would be willing and able to do so.
Equally, if the children were obliged, if they were living in Queensland, to spend all of their school holidays with their father that may in due course provoke resentment in them and cause them to want to resist travelling to see him.
The Independent Children’s Lawyer recognised this issue in supporting the mother’s proposal by suggesting that the children should spend the mid-year holidays (June/July) in Queensland and only part of the long school holidays with their father.
The father also supported his argument with the submission that his family would be available to assist him and to provide stability and continuity for the children. Finally he adopted the Family Consultant’s recommendation that stability for the children was critical and that for them to remain in Canberra would provide the best stability in the circumstances.
The father was also concerned that if the children were to move to Queensland it would exacerbate the mother’s alienation of the children from him - as he perceived it.
As can be seen from this analysis of the propositions from each of the parents the matter is finely balanced.
If the parents had been and were continuing to be engaged in a collaborative, cooperative and successful sharing of parental responsibility and of the time that the children spend with each of them, it would be hard to argue that the advantages associated with the move to Queensland would outweigh a continuation of such an arrangement to the obvious advantage of their relationship with both of their parents.
However, it is not the case that the parents have in any way diminished their animosity for each other. During their final addresses each of the parents took every opportunity to be critical of the other and this was notwithstanding an extensive examination during the course of the cross-examination of the Family Consultant of the detriment to the children in the preservation of such attitudes. I do not accept in this matter that the blame for these ill feelings is properly attributable to one or the other. The existence of the ill feeling is beyond dispute.
The father does not want to move to Queensland, the mother does want to move to Queensland. The best interests of the children are a very important even paramount factor in determining what orders I might make but they are not the only factor and the mother’s reasonable desire to assist her mother who is in a desperate health situation is reasonable and appropriate.
I am not satisfied that if the father were to move to Queensland (whence he originally came) that he would be unable to re-establish himself there in an appropriate occupation. He properly and responsibly indicated that if the mother were to remain in Canberra and he were posted away from Canberra that he would resign from the public service. It would be open to him with the same spirit of investment with the children to forego his present career and to go to Queensland. He does not want to do that. No blame should necessarily be attributed to him for that. However, neither should blame be attributed to the mother for wanting to move to Queensland.
If she were to move to Queensland the consequence must necessarily be to diminish the time the children spend with their father - at least the frequency of the time that the children spend with their father.
By and large, I believe that the Independent Children’s Lawyer’s recommendation about the division of the school holidays in some form would also be appropriate to ensure that the children still had some holiday time with their friends and their mother as well as spending time with the father or the father’s family. It seems to me also that if the father were able from time to time to spend what might be for him a long weekend (that is if he took an extra day off work) in Queensland with the children this might be reciprocated by the mother’s making arrangements for the children to be available out of school for perhaps an extra day from time to time.
Skype and telephone connections between the children and their father are not a substitute for physical time but would ameliorate to some extent the distance. They have been difficult in the past and specific orders need to be made in relation to them to ensure that the arrangements occur as they should.
I am not satisfied notwithstanding the strong evidence of the Family Consultant that the move to Queensland must necessarily be of continuing disadvantage to the children because of the instability generated by the move. Although the Family Consultant was unmoved from her assessment of that situation, it seemed to me, that the basis for her recommendation was not necessarily supported by the facts in this matter. While I do not doubt the significance and importance of stability for the children it seems to me that the combination of factors in this matter, not the least of which would be the psychological equanimity of the mother if she were to move, outweigh the potential psychological issues for the children.
I am influenced in the conclusion I reach by the fact that the children may well face further instability in any event if they were to remain in Canberra as a result of changes either to the mother’s or the father’s accommodation or both. I accept that would occur within a smaller geographical context but there is no guarantee that either parent would be able to maintain a continued residence in the same immediate locality and this may bring about a change in school, a change in friends and a change in the neighbourhood connections.
I note also that the Family Consultant acknowledged that a change at this point in the educational cycle for two of the children at least would probably be at least the “least worst alternative”.
It is always difficult in matters where both parents have clearly focused on the best interests of their children as they perceived them to be, to disappoint one, particularly in circumstances where the new arrangements may well operate to diminish the significance of the relationship that that parent must necessarily have with the children. Nevertheless, in my opinion for the reasons set out above that is what should occur in this matter. I will make orders accordingly.

Commentary on orders made

Helpfully, each of the parents, at my request, supplied a Minute of Orders about the various possibilities for where the children and the mother might live and the time that they would spend with their father and other related matters. Some of the matters raised in the Minutes were not the subject of evidence particularly in current circumstances and some seek to impose obligations and duties which this Court either does not have the power to impose, or alternatively ought not in the interests of practicality to impose.
The orders I have made in this matter reflect a consideration of the Minutes of Orders provided by each of the parents but in some cases diverge from both.
I add hereafter however comment about some of the matters to explain why I have chosen one form of order rather than another.
Orders 3 and 4, notification about medical conditions was the subject of applications that the mother be dealt with for contravention of orders. Common sense and dedication to children should preclude difficulties in this area. I acknowledge however that difficulties are likely to occur. Accordingly, Orders 3 and 4 are prescriptive as to time. Order 3b took account of the suggestions made by the parties but it is drafted to provide that the parents should exercise respect for each other in their common goal of looking after the best interests of their children. I accept that it is in part aspirational.
The issue about private health insurance is dealt with in Order 5. Essentially the parties are required to do such things as they may to allow both parents to have access to the insurance and to claim for expenses that are recoverable.
The mother sought that she have control of the children’s birth/medical records. This was not an order sought originally and no evidence was given about it, certainly in the recent proceedings. Each of the parents should have both the ability to obtain fundamental records about the children and the orders set out above enable that information to be obtained by each of them from medical practitioners. Birth certificates and equivalent documents can be obtained in copies from the relevant registrar.
In relation to [Notation] 6, no orders were sought about such matters originally. The parents appear to have achieved a consensus. The Court’s power to make such an order could only be by way of a departure from a child support order. The notation represents good will on the part of both parents.
The time for the mother to move to Queensland is in accordance with her requested timetable (1 January 2016). It is noted the subsequent orders provide that the father have more time than would otherwise be the case with the children in the school holidays prior to the mother’s departure to make up for the time that would be lost during the longer school holidays.
The recommendations of the Family Consultant were for the children to spend less time with their father (or perhaps that there should be less sharing of the time that the children spend with each of their parents) the orders reflect that arrangement, including provision for them to see him for dinner in the week in which they would not otherwise be spending time with him.
For the time that the children might spend with their father during the school term I have changed the period of notice from 28 days as sought by the mother to 14 days. This is a compromise and seems reasonable.
So far as Father’s day is concerned, it would appear that this is unlikely to fall within any school holiday period. This however would not preclude the father from making that weekend one of his weekends with the children in Queensland if he chose to do so.
In relation to the communication by a parent with the children when they are with the other parent, I have determined in the end that it would be preferable to leave the arrangements flexible in the hope, if not expectation, that the mother and father may find it within their hearts to be able to make such an arrangement work.
The orders provide that the children’s mother should have the children’s passports in her care. She is the parent (by these Orders) who has sole parental responsibility. It is feasible that the mother may require the passports for identity purposes. The fact that she is the one to have the passports in her care however implies nothing more than that this is the most convenient and appropriate place for them to be and if they are required by the father they should be provided promptly.
In relation to Order 22 I have provided that the expenses for the professional assistance to B to enable her to resume her relationship with her father should be met by the father. This seems reasonable in the light of the parties’ financial circumstances and the fact that the result of the counselling would hopefully be of benefit to the father.
There remains an issue about school expenses. No submissions were addressed to me about this matter when it was last before the Court. I do not have sufficient information (even if a properly constituted application had been made) to enable me to determine whether there should be a departure from the child support assessment. I decline to make the orders the parties have suggested.
I have made an order restraining the parties from changing the surname of the children. This is something the father sought and while no submissions were addressed to this issue before me it seems sensible to make a determination which provides certainty.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 23 April 2015.

Associate:

Date: 23 April 2015

[2015] FamCA 297

23 April 2015

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